The Recorder, San Francisco 

12/23/03

Supreme Court Changes Rules on Judge Ethics

By Jeff Chorney

SACRAMENTO -- The state Supreme Court has changed some ethical rules for judges, clarifying sections on bond ownership, sexual harassment and judicial candidates' free-speech rights.

California ethics experts have been expecting the change regarding judicial speech ever since the U.S. Supreme Court's 2002 decision Republican Party of Minn. v. White, 536 U.S. 765. In that case, the nation's highest court found that Minnesota's ethical rules for judges violated the First Amendment because they forbade judicial candidates from announcing their opinions on political issues.

Even though California does not have that exact rule, the state Supreme Court decided to play it safe and tweak language in the ethical guidelines.

The change affects Canon 5 of the state code, which said candidates shouldn't make "statements that commit or appear to commit the candidate with respect to cases, controversies or issues that could come before the courts." The court got rid of the phrase "or appear to commit," so California's rules comply with the Republican Party decision.

"The phrase has been deleted because, although judicial candidates cannot promise to take a particular position on cases, controversies or issues prior to taking the bench the phrase may have been overinclusive," according to a commentary added to the code by the court's ethics committee.

The court also added a section prohibiting misrepresentations during a campaign, although that was already covered by other sections in the ethics code.

Los Angeles Superior Court Judge Eric Taylor, who is president of the California Judges Association, called the change a "step in the right direction" because it "draws a more visible line on what prohibitive campaign speech might be."

Taylor said incumbent judges are often afraid to defend themselves from attacks by challengers who aren't bound by the ethical code. The change should give them a little more leeway, Taylor said.

Chief Justice Ronald George said he didn't expect the speech rule to significantly change the way judicial elections are conducted in the state.

The state Supreme Court made the modifications based on the recommendations of a committee that was formed in 2002 after the Republican Party decision. Chaired by Charles Vogel, the Second District Court of Appeal administrative presiding justice, the committee included five other judges and Chief Justice Ronald George's top lawyer, Beth Jay.

Vogel said the state high court convenes the committee whenever it wants to examine a proposed rule amendment.

The court adopted the changes to the Code of Judicial Ethics last week during an administrative conference.

Vogel also doesn't think the new language on bond ownership will change things much because there are already similar rules that more broadly describe "financial interests."

The new rule adds language to the ethics code that says judges can disqualify themselves in cases that could affect the value of bonds they own. The rule applies only to corporate -- not government -- bonds valued at more than $1,500. And it grants an exception if ownership is through a mutual or similar type of fund.

The court also decided to clarify a prohibition on sexual harassment, making sure existing rules apply to judges' behavior while they perform administrative duties. Many complaints about judges have included alleged behavior that happened when court wasn't in session, George said.